The Texas litigation consultant studied all the notations of laughter during the court’s 2006-2007 term, and discovered a few more himself while listening to tapes.

He found that fewer than half the comments were directed to the lawyer in front of the justices, or even to the argument he or she was making.

The rest were self-referential, or about the court, or about some third party, such as Congress or government in general.

In scholarly fashion, Malphurs – who studied the court for his communications dissertation at Texas A&M – looked for deeper meaning:

“The justices’ laughter diminishes formal control and power barriers, facilitating communication amongst themselves, between the justices and advocates, and with the audience members as well.”

I met Ryan on the Supreme Court sidewalk before the first day of the term, where he gave me a preview of this study as we paced in front of the Court trying to keep warm. He stayed in line for the rest of that first week and later, in a post for F1@1F, reflected on his night with the crowd for Snyder v. Phelps.

Congratulations on the great press, Dr. Malphurs, and keep up the great work!

UPDATE (1/24/11): Adam Liptak of the New York Times gives Malphurs’s study a look.

Ryan Malphurs, the second-most ultimate Court watcher in my column from the first day of oral argument this term, also stayed overnight for the Snyder v. Phelps argument last week. He penned an open letter Op/Ed to the Court with a unique take on that night’s events, as well as his insights into overall state of the general admission line derived from his scores of sunrises on the sidewalk since 2006. With his permission, I’ve copied the column below.

—

Dear Mr. Chief Justice and May it please the Court,

The opportunity to observe Supreme Court oral arguments offers citizens a rare window into one of the Court’s most revered rituals. The Court offers a limited number of seats to the general public for each oral argument and distributes the tickets based upon the position in line for which the individual occupies. Motivated citizens can wait in line many hours or even days before a case to secure a seat in oral arguments. Citizens interested in the D.C. v. Heller case slept outside for three days prior to the Court’s distribution of tickets.

I love the egalitarian nature of this approach to oral arguments because it ensures that any citizen can gain admittance to the Court’s arguments. Only in line for Supreme Court oral arguments can you stand shoulder to shoulder with a homeless person, construction worker, law school student, and plaintiff or respondent (all were in line together on Monday). However, over the past few years conditions within the citizens’ line have grossly deteriorated contributing to injustice at the very site where justice should be most prominent.

Over the past four years I have observed more than fifty oral arguments and have made it a habit to attend the opening of the Court’s term every October. Another gentleman and fan of the Supreme Court has been attending the term’s opening arguments every October since 1989, an incredible feat. This past week I waited outside each day to gain entry into the Court’s oral arguments, but it was on Tuesday when I endured reprehensible behavior that I never believed would be tolerated at the Supreme Court.

In line on Tuesday afternoon for Snyder v. Phelps, I found myself directly behind Phelps’ supporters; throughout the day, evening, and early morning these supporters evangelized to the entire crowd, pacing up and down the line, questioning our religion, condemning us to hell, and calling us whores and fags among other things. For a few hours their antics were somewhat ridiculously humorous, but after nearly eight hours of intermittent condemnation their speech grew both offensive and bordered on the category of fighting words as the crowd grew angry and restless. During this time, police officers from the Supreme Court and the Capitol police observed from a distance, but did not intervene.

At 10pm those of us in line began preparing to sleep, hoping to get some rest before the next day’s oral arguments. However, as we laid down, the Phelps’ supporters began screaming at us, encouraging their children to take turns yelling to prevent us from sleeping. Lying in my sleeping bag, with an individual literally screaming into my ear, I could not help but note the irony of the situation. Much like Snyder v. Phelps, here we were a captive audience, unable to leave the line because doing so would have cost us our place. We were forced to endure the group’s objectionable vitriol. The Court has ruled in Frisby v. Schultz that “the First Amendment permits the government to prohibit offensive speech as intrusive when the ‘captive’ audience cannot avoid objectionable speech.” The Court has a designated area for groups and individuals to express their speech, and citizens waiting in line before oral arguments should not be forced to endure hours of hate ridden speech as a captive audience. I am angered that this type of speech, which is clearly not protected, was even tolerated by officers outside of the Supreme Court. Americans have come for centuries to the Court seeking protection, and we should expect, at the very least, constitutional protection from a group’s hatred when serving as a captive audience. I hope you make a similar determination in Snyder v. Phelps.

Adding insult to injury, while everyone was asleep the Phelps’ supporters decided to move their materials to the front of the line, usurping the position of those who had spent two nights out in the cold to be first in line, a fine example of Christian behavior. When the group of students who had originally been first in line complained to the police about the group’s movement, astonishingly the police refused to address the situation; only when the crowd grew riotous, at a group of twenty Phelps’ supporters joining the front of the line at 8am, did the police partially intervene, though surprisingly allowing the initial usurpers to remain even after a policeman acknowledged the group of students had been first in line for two days.

The egalitarian and often fair nature of the Court’s line for oral arguments has begun deteriorating over the years without any guidance from the Court, potentially disadvantaging the very citizens who hold the Court dear. Last year a tour company hired ten paid individuals to stand at the front of the line and hold spots for 60 of the company’s clients. The police again declined to intervene and the crowd’s aggressive nature frightened the operator who pulled the paid line holders from their places and abandoned his plan.

I am petitioning the Court to maintain the egalitarian and just nature of the line for oral arguments because these are active citizens who have spent days and nights outside to observe and participate in ritual of oral arguments. Citizens willing to endure such extremes are a rarity today and the Court should offer an orderly and secure environment, where these dedicated citizens should not have to endure the very same unprotected speech the Court has ruled against. Tolstoy has written that “where there is law, there is injustice,” but one should never expect injustice when standing before our country’s highest court.

—

For Malphurs, oral arguments have served as research for his Ph.D. work “regarding the cognitive influence of communicative interaction between the justices and advocates.” His paper, “Making Sense of ‘Bong Hits 4 Jesus': A Study of Rhetorical Discursive Bias in Morse v. Frederick,” served as the basis for his dissertation and is available on SSRN. I endorse the paper for all F1@1F readers, especially those interested in the intersection of law and communications

The First Lady of First One @ One First and I just returned from a weekend trip to Philly. We left on Friday, just in time for her to be a captive audience to the Court’s just-released audio from last week’s oral arguments. But moments into Snyder v. Phelps, her initial reluctance gave way to rapt attention and demands to “pause it!” so she could give her own impressions of the issue at hand. She enjoyed the back-and-forth of the justices and advocates so much that when we hit the road today, she asked to pass the time at the toll booths with Connick v. Thompson.

For those who do not have an hour on hand to subject your special someone to the full SCOTUS treatment, Josh Blackman of The Harlan Institute has produced a thirteen minute “FantasyCast” of Snyder as part of the Institute’s FantasySCOTUS project. In it, he compiles the argument’s audio highlight reel to create a very effective summary of what transpired last Tuesday morning.

Despite his job well done on the FantasyCast, however, I know Josh would agree that the full hour’s argument is worth the listen. To put the FLOF1@1F’s enthusiasm in context, it took her three years to tune her ear to the differences between AC/DC’s Bon Scott and Brian Johnson eras, but only two hours to correctly identify each justice by voice. If she’s proven more fit for the Supreme Court Side Walk than the Heavy Metal Parking Lot, I’m certainly not complaining. In fact, should her response be typical for non-SCOTUS obsessives, then the Court should consider augmenting its annual budget with some lucrative summer arena tours. Talk about two birds, one stone: the justices would be able to quit their annual Congressional grovel for pay raises, and the peoples’ increased opportunity to watch the Court in action would quell some of the cries for cameras in the courtroom.

Like this:

Snyder v. Phelps attracted more press and general public than I have seen in my time covering the Court. Granted, no abortion cases or Presidential elections have come up since I started F1@1F, but even last term’s campaign finance and gun rights blockbusters couldn’t compete with today’s scene.

The upshot, however, is that those cases yielded landmark decisions, while Snyder will bring nothing of the sort. If there’s any lesson at all to be gained from this morning’s oral argument, it’s a reassertion of the truism that bad facts–or, in this case, exceedingly unique facts–make bad law.

The issue in this case is whether the father of a fallen marine may seek damages for intentional infliction of emotional distress against Fred Phelps’s Westboro Baptist Church for picketing the soldier’s funeral with signs reading, “Fag Troops” and “Thank God for Dead Soldiers.”

From these facts, the justices struggled to find a principle upon which they could base their ultimate decision. On the one hand, the Court is loath to carve out new exceptions to speech protected by the First Amendment. Try putting “funeral protests far enough away not to be seen or heard by the mourners” at the end of the famous Chaplinsky dicta from 1942 enumerating unprotected speech: “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting’ words.” Stands out like, well, a picketer at a funeral.

On the other hand, the justices are human, and what humans, spare the Phelps family, wouldn’t sympathize with Al Snyder’s suffering? But try as they might, the justices were simply unable to shoehorn the Phelps family’s practices, as applied to Matthew Snyder’s funeral, into any of the Chaplinsky categories.

Justice Antonin Scalia latched onto the “fighting words” doctrine, only to be systematically disabused of the idea by Margie Phelps, Fred Phelps’s daughter and WBC’s lead counsel. She not only defied Scalia with the Court’s definition of “fighting words” that proved the doctrine inapplicable, but also reminded him that “[n]o element of the tort under which liability attached included fighting words.”

Justice Stephen G. Breyer also took his turn, invoking the WBC’s speech against Matthew Snyder on its website and on television as something akin to defamation. Sean Summers, Snyder’s counsel, went along with Breyer, but Justices Ruth Bader Ginsburg and Sonia Sotomayor simultaneously jumped in to remind Summers that defamation–which revolves around a statement’s truth or falsity–was not the tort at issue.

Finding no quarter for funeral with pre-existing categories of unprotected speech, Breyer sought refuge in his familiar balancing tests, suggesting ways to allow the tort of intentional infliction of emotional distress “to exist but not allow the existence of it to interfere with an important public message where that is a reasonable thing to do.”

But Breyer is a lone wolf when it comes to First Amendment pragmatics. Where he seeks to balance interests, the other justices simply want to decide whether the WBC’s speech is protected or not.

Justice Alito, the sole dissenter in last year’s United States v. Stevens, in which the Court genuflected to the First Amendment in striking down a federal statute criminalizing depictions of animal cruelty, appeared the most willing to deem the funeral protest unprotected. He brought new relevance to the WBC’s website, using its attacks on Matthew Snyder as context to rebut the Phelps’s argument that the funeral protest was directed towards the nation and not Snyder’s family.

Moving on, Alito unloaded a hypothetical on Phelps:

Let’s say there is a grandmother who has raised a son who was killed in Afghanistan or in Iraq by an IED. And she goes to visit her son’s — her grandson’s grave, and she’s waiting to take a bus back to her home. And while she’s at the bus stop, someone approaches and speaks to her in the most vile terms about her son: He was killed by an IED; do you know what IEDs do? Let me describe it for you, and I am so happy that this happened; I only wish I were there; I only wish that I could have taken pictures of it. And on and on.

Now, is that protected by the First Amendment? There is no false statement involved and it’s purely speech.

By the tone of his voice, Alito clearly thought such a diatribe on an old, defenseless woman–“a Quaker, too,” by Scalia’s surmising–was unprotected. When Phelps proved hypo-proof on that scenario, drawing the justices back to the case’s specific facts despite attempts by Chief Justice John G. Roberts and Justice Elena Kagan to recognize a limit to vile speech of some public concern, Alito upped the ante:

Suppose someone believes that African-Americans are inferior, they are inherently inferior, and they are a really a bad influence on this country. And so a person comes up to an African-American and starts berating that person with racial hatred. … That’s a matter of public concern?

Phelps said yes, it is, as long as the racist doesn’t get “up close and in their grille.”

At this point, Justice Anthony M. Kennedy sprang forward, only now sensing the potential for one’s self-definition and dignity in the universe being threatened. Noting that “all of us in a pluralistic society have components to our identity; we are Republicans or Democrats, we are Christians or atheists, we are single or married, we are old or young,” Kennedy feared that if any of these components are of public concern, there is no limit to the damage the WBC might do to innocent bystanders for the sake of maximum exposure.

Yet for all the doubt the justices expressed towards the WBC’s claims of constitutional protection, Snyder’s argument simply could not carry the day. Challenged by Justice Kagan to articulate a standard for how to determine which protests “glomming to a private funeral” should or should not fall outside of the First Amendment, Summers could articulate no governing principle. Ultimately, it seemed, Snyder sought not a general rule of law, but rather a Constitutional carve-out for his own grief. Such personalized positions are not the stuff of Supreme Court precedent.

In the end, while Summers faltered, Margie Phelps refused to be pinned down. Her arguments that Snyder himself made his grief of public concern in a statement to the press following Matthew’s death–thereby making him fair game for a protest on the nation’s tolerance of homosexuality, which was staged 1000 feet away and out of his ear- and eyeshot so to comply with local ordinances–were too solid for anyone committed to robust free speech principles to deny.

Should the Court, as appears likely, hold its nose and side with the Phelps’s, then this case will stand for a principle older than the First Amendment and our Constitution itself: it’s always good to have a lawyer–or sixteen lawyers–in the family.

The Snyder v. Phelps line began Monday night at 8pm. Twenty-four hours later, the Georgetown undergraduate students who started the line were joined by fifty more new friends. The Bethel family, pictured above, were not out there to make friends. Here’s a video of Glynis Bethel, the family’s mother, on their beliefs:

Videos of the rest of the family coming soon. More footage to be taken tomorrow morning, too!

The Supreme Court, taking on the emotionally charged issue of picketing protests at the funerals of soldiers killed in wartime, agreed Monday to consider reinstating a $5 million damages verdict against a Kansas preacher and his anti-gay crusade. […]

The funeral picketing case (Snyder v. Phelps, et al., 09-751) focuses on a significant question of First Amendment law: the degree of constitutional protection given to private remarks made about a private person, occurring in a largely private setting.

If Lyle’s description and the name “Phelps” didn’t already set off your mental bells, let me put the question before the Court another way–with illustrative hyperlinks: is thisspeech by this preacher‘s congregationprotected under the First Amendment?

In other words, I may have to dust off F1@1F next term for a special encore report from this case’s line.

—

UPDATE: Back in 2006, Molly McDonough of the ABA Journal–she’s now my overseer over there–wrote about the constitutionality of the state and federal laws enacted to keep Phelps’s folk away from soldiers’ funerals. Next term’s case is based on a common law tort’s damage award, not on any statutory command, but McDonough’s story is still well-worth revisiting.